We are faced with a ruling from the Social Chamber of the Supreme Court, in which the litigious debate revolves around determining whether the workers to whom the IV state sectoral collective agreement for auxiliary external services and customer service in railway service companies applies and whose contracts were suspended under article 47 of the Workers' Statute, therefore entering into an ERTE situation, have the right to fully enjoy the six days of their own matters provided for in that collective norm or if they should enjoy them. in proportion to the time of service provision.

The ruling of the National Court 161/2021, of June 30 (recourse 518/2020) declared the right of these workers "to enjoy the days of their own affairs in their entirety, without proportionality to the time in which their employment relationship was suspended by an ERTE."

Dissatisfied with the ruling of the National Court, the Group of Railway Services Companies filed an ordinary appeal alleging three reasons:

• The first reason alleges the transgression of article 153 of the Law Regulating Social Jurisdiction (LRJS), in conjunction with article 24 of the Constitution and the relevant jurisprudence cited. Argues the inadequacy of the collective conflict procedure.
• The second reason seeks the review of the third proven fact that says that between the months of September and December 2020, at least six workers of the company Ferrovial Servicios, S.A., requested the enjoyment of days of their own business, but were denied permission for "not having generated enough days to be able to enjoy them."
• The third reason indicates the violation of article 37 of the IV state sectoral Collective Agreement for auxiliary external services and customer service in railway service companies, in connection with article 42.5 of the Workers' Statute, as well as articles 3, 1281 and 1282 of the Civil Code and article 14 of the Constitution. It maintains that the days of own business should be recognized proportionally to the time in which the workers, whose contracts have been suspended due to a Temporary Employment Regulation File (ERTE), have provided services in the company.

The object of this lawsuit is not a conflict of interest but a legal conflict because the aim is not to create a new legal norm but rather to interpret a conventional provision, specifying its scope.

Once the factual background has been analyzed, the court declares:

Regarding the first reason for the appeal, which alleges the inadequacy of the collective conflict procedure, the Supreme Court concludes that there is a current and collective conflict over the interpretation of art. 37 of the collective agreement in relation to the proportional or non-proportional enjoyment of business days during an ERTE. It is determined that this conflict is of a legal and collective nature.

Regarding the second reason for the appeal, which requests a factual review of the third proven fact, the Court considers that the modification proposed by the appellant is irrelevant and does not affect the procedural controversy or the merits of the matter.

In relation to the third reason for the appeal, which argues that the interpretation of the National Court does not comply with the rules of interpretation of the Civil Code, the Court establishes that, as there are no specific criteria in the collective agreement on the enjoyment of the six-day leave for personal matters, the principle of proportionality must be applied, since it is a divisible right based on working time.

Failed: Consequently, the appeal is upheld, and it is established that workers affected by an ERTE do not have the right to fully enjoy the six days of their own business, but rather said enjoyment will be reduced proportionally to the time of suspension of labor relations.